When an NDA gets out, look out

A week ago Monday, I was at a public meeting to rally Nova Scotians to push our  government to pass legislation introduced by the NDP that would limit NDAs.  Bill 144 which restricts the use of NDAs (non-disclosure agreements) was coming up for a vote that week.   Local organizers for Can’t Buy My Silence, an international group which is committed to ending the misuse of NDAs to buy victim’s silence hosted the meeting. Claudia Chender, leader of the NDP attended as did independent MLA for Cumberland North, Elizabeth Smith-McCrossin.  

The Houston government had at one point signaled a law was in order, but in October  2022 the Justice minister Brad Johns declared “It’s not a priority right now of this government.”

Two weeks later, Premier Houston backed up his minister.  Houston said, “I’m not aware of situations where people would be forced to enter into these.”

Non-disclosure agreements (NDAs) are often used to stop female employees from complaining against sexual harassment, or even rape, at the hands of their corporate higher ups.  NDAs were originally meant to prevent sharing trade secrets, or stop employees leaving their jobs from taking client lists with them to new employers.  But in the last decades, the use of NDAs has become much more insidious. 

For instance, Zelda Perkins, a personal assistant to wealthy filmmaker and impresario Harvey Weinstein, was forced to sign an NDA when she found out her colleague was sexually attacked by him in a Venice hotel room.  Perkins herself had been subject to sexual harassment by Weinstein.  In 1998, Perkins and her colleague were paid money for their silence.  But no amount of money could assuage the problem of never being able to discuss what really happened with Weinstein and the loss of the women’s jobs.  The NDA Perkins signed meant she could never discuss what had taken place, what she and her colleague went through, who the culprit was, anything about the company – forever.  She was not to divulge anything to a doctor, a therapist, her mother or her friend.  Weinstein and his lawyers forced her into utter silence about a crime Weinstein had committed.  Nineteen years later, in 2017, Perkins became the first woman to publicly break her NDA.   What followed lead to many women coming forward, who also broke  their NDAs, to reveal  how Weinstein trapped and assaulted them.  Ultimately, Weinstein was jailed for 23 years– likely the rest of his life. 

The floodgates opened on sexual assault.  Women, who for many years were forced into silence,  started to speak out. 

Two Men Talking, painting by Fernando Rodriguez Salas (Spain). (Saatchiart.com)

Zelda Perkins and Julie Macfarland, a professor emerita at the University of Windsor Faculty of Law, joined forces to launch an international campaign called Can’t Buy My Silence.  In 2021, the campaign helped push the PEI government to pass a law that limits the use of NDAs.  BC and Manitoba are in the process of doing the same.  Ontario has passed a law outlawing the use of NDAs in the university sector.  In February 2023, the Canadian Bar Association voted overwhelmingly to end the abuse of NDAs.

But what of Nova Scotia? Equity Watch and others have pressured the NDP for more than a year to introduce a bill to limit NDAs in cases of sexual harassment or discrimination.  On Apr 2, the NDP with the support of all the opposition members put forward Bill 144.  . Houston and his government backed away, once again. They declared they needed to scan other jurisdictions and basically delay passing the bill.  

NDP leader Claudia Chender was furious.   She said, “These agreements protect people who are powerful, they protect people who are wealthy and they protect the status quo.”

Supporters of Can’t Buy My Silence, and the Avalon Sexual Assault Centre were also angry. Zach Churchill, Liberal opposition leader, noted  “This government built their brand on doing more, faster, and yet on this issue they dragged their heels and do nothing, … I hear no empathy for victims.”

Then came the puzzling part…

Independent MLA Elizabeth Smith-McCrossin, who had been thrown out of the Tory caucus in 2021 presented an unsigned NDA– the subject of which was Kaitlin Saxton, a fired Conservative Party staffer.  In 2018, Saxton told her parents she had been coerced to sign an NDA and felt her firing was totally unjust.  Smith-McCrossin then hired Saxton as a constituency assistant who proved to be an excellent employee.  Tragically, Saxton died of brain hemorrhage in June, 2022.  In the legislature this week, Smith-McCrossin suggested that the original NDA had to do with sacking and then silencing Saxton about a sexual assault committed by someone in the Tory caucus. 

The Tories  announced that if Smith-McCrossin does not withdraw her accusation and apologize, the Tories will use their majority to kick her out of the Legislature.  For her part, Karla MacFarlane, currently  minister of Community Services, insists  though she was party leader in 2018  – she knows nothing about the NDA.  

It seems the premier is hedging his bets.  About kicking Smith-McCrossin out, Houston said, “We’ll see” and that his caucus is still discussing it.   He seems to be backing away from taking draconian action against MLA  Smith-McCrossin. How would it look if Kaitlin Saxton’s grieving parents got involved and pursued the issue of  their daughter having been coerced to sign an NDA? 

For her part, MLA Smith-McCrossin stands by what she has done; she says she will take legal action if she’s kicked out. Opposition leader Churchill is backing Smith-McCrossin, as is Chender and the NDP.   

credit: Psychology Today

The reason the Houston government is so upset about NDAs is that by their very nature NDAs are secret and part of a cover-up.  NDAs are all about gagging victims. When an NDA gets out, look out.  

POSTSCRIPT: Today, Apr. 5, Premier Houston says he just wants to “move on”. The Tories backed down; they are not going eject Smith-McCrossin from the legislature after all!

Featured painting above: London Underground: Brixton Station and Victoria Line Staff by Aliza Nisenbaum (2019). Nisenbaum was born in Mexico City and now lives in New York City.

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